Instead of making a final ruling on a defense request to
suppress government evidence, U.S. District Judge Sharon Johnson
Coleman gave the lawyers permission to review the secret court
documents to assess whether the evidence was gathered lawfully.
Coleman should’ve explained her decision, Posner said.

Coleman called her ruling the first of its kind.
Prosecutors said it will force the government to disclose
sensitive classified information, damaging national security.
Durkin has argued he needs access to the records to defend his
client, Adel Daoud, a Chicago-area teenager ensnared in a
government sting operation and charged with attempting to bomb a
downtown bar.

John D. Cline of San Francisco, Daoud’s lawyer in the
appeal hearing, told the three-judge panel requiring the defense
to file a request to suppress evidence without knowing details
of warrant applications was “like playing pin the tail on the
donkey.”

Not Guilty

Daoud was arrested by Federal Bureau of Investigation
agents in September 2012 at the age of 18 after allegedly trying
to detonate a device given to him by an undercover agent. He
later pleaded not guilty to charges of attempting to use a
weapon of mass destruction and trying to damage or destroy a
building with an explosive.

His case is one in a series of sting operations in which
undercover agents befriended men suspected of harboring
terrorist intentions, provided them with a fake weapon, and then
arrested them when they tried to use it.

Assistant U.S. Attorney William Ridgway told Posner and
U.S. circuit judges Ilana Diamond Rovner and Michael Kanne that
the bar for granting access to FISA documents is necessarily
high and those circumstances are rare.

After hearing about 40 minutes of argument, the panel
cleared the courtroom of all but select personnel, including
U.S. Attorney Zachary Fardon, to hear additional debate which
Posner described as “secret.”

Press Barred

Among those barred from that portion of the proceedings
were Cline, Durkin and members of the press.

The Daoud dispute comes to the U.S. Court of Appeals in
Chicago amid disclosures about National Security Agency methods
and practices by its former contract employee, Edward Snowden.
Snowden’s NSA revelations have caused diplomatic friction with
allies and spurred lawsuits aimed at curbing data collection.

In December, a federal judge in Washington said that the
NSA’s telephone-data surveillance program probably violates
constitutional privacy rights, possibly setting the stage for an
eventual review by the U.S. Supreme Court. Yesterday, a federal
judge in Idaho, while dismissing an unrelated lawsuit
complaining about the NSA’s collection of phone data, suggested
that the nation’s high court take up the issue.

Sting Operations

The FBI made contact with Daoud after he used the Internet
to obtain and post information about waging a holy war and
killing Americans, the Justice Department said in announcing his
arrest.

At the time, he was living in his parents’ house in
suburban Hillside, Illinois, about 15 miles (24 kilometers) west
of Chicago. A “substantial question” for Daoud’s trial is
whether he was induced by government agents, or entrapped, into
committing crimes, Durkin said in a court filing.

Coleman’s ruling in January, over the objection of Attorney
General Eric Holder, gave Daoud’s lawyer permission to see
paperwork, similar to a search warrant request, that government
lawyers submitted to the Foreign Intelligence Surveillance
Court. The court’s function is to review requests for permission
to conduct surveillance or searches targeting foreign powers or
their agents.

“While this court is mindful of the fact that no court has
ever allowed disclosure of FISA materials to the defense, in
this case the court finds that the disclosure may be
necessary,” Coleman wrote.

Security Clearance

The judge granted Durkin access on the condition he obtain
the security clearances required to view the secret papers. The
attorney, who has represented Guantanamo Bay detainees and other
clients charged with terrorism-related offenses, has told the
court he was previously cleared to see confidential government
information.

Coleman delayed her order pending the outcome of the
appeal.

The government’s surveillance request may show it didn’t
have cause to believe that Daoud, “a high school student from
suburban Chicago and United States citizen, was an agent of a
foreign power,” Durkin said in a filing. If so, Durkin could
have grounds to seek the exclusion of evidence derived from it.

Prosecutors counter that the law allows disclosure of
foreign-intelligence materials only when the court itself is
unable to accurately determine whether the surveillance was
lawful. Coleman didn’t adhere to that standard and failed to
find the disclosure necessary, the U.S. said.

Irreparable Harm

“Once this information is disclosed, the harm from
disclosure cannot be undone,” prosecutors said in a March
filing with the appeals court.

“Defense attorneys don’t get to be present when warrants
are issued,” he said in a phone interview. “Most of the time,
we get to see the basis. FISA has been the exception.”

Swift disputed the government’s argument that showing the
papers to Durkin constituted a threat to national security,
citing the attorney’s prior security clearances and his status
as an officer of the court.

“I understand the need for national security,” said
Swift, a U.S. Navy veteran. “I’m not against it. But I also
believe this is an adversarial process and a one-sided process
will never be fair.”

Life Sentence

Daoud faces a maximum sentence of life in prison if he’s
convicted on the weapons of mass destruction charge.

Sami Samir Hassoun, a Chicago man, last year was sentenced
to 23 years in prison after pleading guilty to attempting to
detonate a fake bomb near the ballpark used by Major League
Baseball’s Chicago Cubs. He got the device from an undercover
agent.

Derrick Shareef was sentenced in 2008 to 35 years in prison
after pleading guilty to a plot to attack an Illinois shopping
mall around Christmas 2006 with devices that an undercover agent
told him were hand grenades.

The appellate case is U.S. v. Daoud, 14-1284, U.S. Court of
Appeals for the Seventh Circuit (Chicago). The trial court case
is U.S. v. Daoud, 12-cr-00723, U.S. District Court, Northern
District of Illinois (Chicago).